Clarence Thomas Takes a Skeptical Eye Towards Surveillance Advertising
The conservative justice issued a statement on Section 230 of the Communications Decency Act, in which he attacked the core business model of Silicon Valley giants.
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Starting in late 2020, conservative Supreme Court Justice Clarence Thomas has gone on a rampage against Silicon Valley, arguing they should be treated as common carriers and that Google, at the very least, is a powerful monopoly. Today, Thomas issued yet another statement, this one directed towards Facebook and the legal underpinning for the internet, Section 230 of the Communications Decency Act. He made this statement in a case about whether Facebook is immune from a charge of the firm facilitating human trafficking of a 15-year old girl, after a man used the service to lure her to a meeting and abuse and abduct her.
Section 230, passed in 1996, is the legal underpinning for the internet, as it shields anyone with a website or app from being responsible for the content that users put out there. Users can libel one another, trade illegal goods, or harass each other, and courts have ruled that the underlying platform isn’t responsible. Grindr, for instance, knowingly facilitated the violent stalking of a man by his boyfriend, but was held immune from liability. Amazon has argued it’s not responsible for counterfeit products sold on its website, and credit reporting agencies are trying to use the law to avoid being regulated for mistakes in one’s credit report. Abuse of this law is common.
Section 230 has become the shield for swaths of corrupt activities; Facebook can’t be held liable for enabling with Grindr did, for the same reason, because it is merely an ‘interactive computer service.’ Like J.C.’s impersonation of Herrick, scammers use Facebook to impersonate soldiers so as to start fake long-distance relationships with lonely people, eventually tricking their victims into sending their ‘boyfriends’ money. Soldiers are constantly finding fake profiles of themselves, and victims are constantly cheated in heart-breaking ways. The military is helpless to do much about this, the power to act is in Facebook’s hands.
The reason for the use and misuse of Section 230 is simple. Advertising money. In particular, the kind of advertising facilitated by large swaths of personal data depends on Section 230 immunity, otherwise dominant platforms would have to spend large amounts on content moderation, and probably couldn’t avoid liability even if it did so. Thomas doesn’t like this setup, and in his statement, he pointed out that Facebook refused to do anything to stop the use of its services by human traffickers “because doing so would cost the company users—and the advertising revenue those users generate.”
And thus, he argues, “It is hard to see why the protection §230(c)(1) grants publishers against being held strictly liable for third parties’ content should protect Facebook from liability for its own “acts and omissions.”” Thomas’s comment was in a procedural motion, not a case, so it doesn’t create any precedent. But he continues to ask lawyers to bring the Supreme Court a case where it can narrow the scope of Section 230. And eventually, someone will.